INTRODUCTION
Under tax criminal law, the offense of issuing false
invoices holds significant importance both for the protection of the economic
order and for ensuring fiscal discipline. Set out under Article 359 of the Tax
Procedure Law Nr. 213 (TPL), this offense often appears in practice in the
forms of complicity, instigation, or aiding and abetting. The act of issuing
false invoices is frequently not carried out by a single perpetrator, but
within a division of labor established among company partners, representatives,
accountants, and third parties. Therefore, rather than the material elements of
the offense, the application of complicity provisions and the standard of
evidence become decisive.
In this study, the reversal decisions, bearing the Basis number 2016/9306 and the Decision number 2020/944, and bearing the Basis number 2021/43596 and the Decision number 2023/5766, of the 11th Criminal Chamber of the Court of Cessation, will be examined. The two reversal decisions under review establish significant principles regarding complicity, statutes of limitation, and the application of more favorable law in the offense of issuing false invoices. [1]
The Legal Nature of the
Offense of Issuing False Invoices and the Problem of Complicity
Under Article 359/b of the Tax Procedure Law (TPL), the offense of issuing false invoices constitutes an act aimed at misleading the tax system by producing a seemingly lawful commercial document. In this offense, the following elements are sought:
- The issuance of a document based on a non-existent
goods or services relationship,
- The deliberate and intentional preparation of the document in a manner that makes it capable of producing tax law consequences.
However, in practice, the individual who physically issues the document may differ from the one who organizationally directs its preparation. At this point, the provisions on complicity, as set out under Articles 37–39 of the Turkish Penal Code Nr. 5237, take effect. The main point of dispute regarding complicity is whether a person can be automatically considered the perpetrator or an aider of the offense by virtue of being a company partner, having representative authority, or engaging in accounting activities. In the first reversal decision under review, the Chamber explicitly answers this question in the negative.
First Reversal Decision: Investigation of the Factual Reality and Determination of ComplicitY
In the first decision, the Chamber stated that in response to the allegations that the defendants issued or were complicit in the issuance of the invoices in question, the following measures should be taken: Submission of the original invoices, Hearing the taxpayers who used the invoices as witnesses, Obtaining an expert report in cases of signature denial, Hearing as witnesses the individuals mentioned in the defenses, Concretizing the professional scope of the accountant’s (Certified Public Accountant – CPA) activities.
In doctrine, the complicity of financial advisors in the offense of issuing false documents is associated not merely with carrying out technical procedures, but with situations in which they demonstrate concrete contribution and intent as perpetrators, instigators, or aiders. In this context, the Court of Cessation jurisprudence emphasizes that the relationship between the taxpayer and the CPA must be clearly established and beyond doubt when determining the CPA’s complicity [2]. Indeed, under the relevant decisions, the Chamber annulled the conviction rulings due to insufficient investigation in this regard.
These deficiencies constitute a violation of the criminal procedure’s objective of “attaining the factual truth.” In criminal proceedings, the court may not rely solely on technical reports in the file; it is obliged to collect direct evidence and examine such evidence. In particular, regarding a defendant in the position of an accountant, the Chamber emphasized that a clear link must be established between the professional services provided under Law Nr. 3568 and complicity in the offense. The mere submission of tax returns by the accountant does not, by itself, constitute complicity in the offense of issuing false invoices. An opposite approach would result in a shift toward strict liability instead of fault-based liability, which is incompatible with the principles of contemporary criminal law.
This
decision demonstrates that the existence of the intent of complicity must be
assessed together with the following elements:
-
Actual contribution,
-
Conscious and deliberate conduct,
- A shared purpose aimed at the commission of the offense.
The decision specifically states that a conviction may not be established without examining whether the accountant defendant acted merely by submitting tax returns or by consciously contributing to the organization of false invoices. This approach aligns with the doctrinal view that, for complicity, intent and actual contribution must be concretely established, and that criminal liability cannot be based solely on a professional relationship or formal authority.
The
decision is based on the principle of “investigation of the factual truth”
within the framework of the Code of Criminal Procedure. In particular, it
emphasizes that:
-
Evidence must be evaluated in accordance with the principle of directness,
-
Signature examinations should be conducted by an expert,
- Witness statements should be taken in accordance with the principle of face-to-face examination.
In this respect, the decision also indirectly indicates that, in tax criminal proceedings, technical reports (such as tax technical reports) cannot, by themselves, be considered sufficient for a conviction.
Standard of Evidence and the Limits of Tax Technical Reports
Tax technical reports, frequently used in tax
offenses, contain technical and financial analyses. However, in criminal
proceedings, these reports do not possess binding evidentiary value. The
criminal judge exercises free discretion in evaluating the report.
In the first reversal decision, the Chamber did not consider it sufficient to reach a conclusion of complicity solely based on the content of the report. This approach reflects the presumption of innocence and the principle of “in dubio pro reo.” Criminal liability must be based on certainty leaving no room for doubt, rather than on assumptions.
At this point, the Chamber’s approach clearly highlights the distinction between the tax inspection process and criminal proceedings. While presumptions may carry more weight in tax law, in criminal law, the proof of subjective elements is mandatory.
Second Reversal Decision: Statute of Limitations and the Issue of More Favorable Law
The
second decision relates to the ruling issued following the previous reversal.
At this stage, three main issues arise:
- Statute
of limitations,
- Interruption
of the statute of limitations in cases of complicity,
- Determination of the more favorable law following the amendment under Law Nr. 7394.
The Link Between Statute of Limitations and Complicity
The Office of the Chief Public Prosecutor of the Court of Cessation argued that the ordinary statute of limitations had expired with respect to one of the defendants. However, the Chamber held that, regarding the defendant who was acquitted but alleged to have committed the offense in complicity, the proceedings interrupted the statute of limitations for the other defendants.
This approach is based on the understanding that, in offenses committed in complicity, the interruption of the statute of limitations may produce collective effects. Thus, the complicity relationship generates consequences not only in terms of substantive liability but also within procedural law.
PRINCIPAL OF MORE FAVORABLE LAW (ART. 7/2 of TPC)
The most noteworthy aspect of the decision is its emphasis on the need to evaluate the amendments made to Article 359 of the Tax Procedure Law (TPL) by Law Nr. 7394, which entered into force on 15.04.2022.
The
Chamber explicitly emphasized the obligation to:
- Compare
the former and new regulations,
- Determine
the provision that is more favorable to the defendant,
- Demonstrate the application under both laws with justifications.
This approach demonstrates that the principle of more favorable law must be applied in a substantive and controllable manner, rather than merely formally.
This
situation illustrates the two stages of review by the Court of Cessation:
- Examination
of the sufficiency of evidence and procedural safeguards,
- Review of whether the legal norms have been correctly applied.
CONCLUSION
When the two reversal decisions under review are
evaluated together, the following conclusions can be drawn:
The first decision focuses primarily on uncovering the
factual truth, while the second decision emphasizes the correct application of
procedural law. The Court of Cessation’s approach is consistent with the rule
of law and the principle of personal criminal responsibility, as it establishes
that complicity must be determined based on concrete contribution and intent,
rather than abstract duties or professional relationships. However, the issue
of interruption of the statute of limitations in cases of complicity remains
open to debate in doctrinal literature. The question of the extent to which the
proceedings conducted against an acquitted defendant interrupt the statute of
limitations for other defendants is significant, given the individual nature of
the statute of limitations. In addition, the emphasis that the examination of
the more favorable law must be carried out comparatively for both regulations,
with a reasoned and concrete calculation of the sentence, and that tax
technical reports serve as supportive evidence rather than as direct technical
evidence for conviction, can be regarded as an important practical reminder for
implementation.
In conclusion, the above-mentioned two decisions of the 11th Criminal Chamber of the Court of Cessation can be regarded as jurisprudence of substantial depth in tax criminal law, both in terms of substantive criminal law and criminal procedure, with the potential to guide practice.
Ahmet Berke Baştuğ, Legal Intern
References:
1. Reversal
decisions, bearing the Basis number 2016/9306 and the Decision number 2020/944,
and the Basis number 2021/43596 and the Decision number 2023/5766, of the 11th
Criminal Chamber of the Court of Cessation
2. Yaşar Ayyıldız ve Serdar Şahin, “Yargıtay İçtihatlarında Serbest Muhasebeci Mali Müşavirlerin Sahte Belge Düzenleme Suçuna İştiraki (Complicity of Certified Public Accountants in the Offense of Issuing False Documents in the Jurisprudence of the Court of Cessation),” Journal of Finance, Economics, and Social Research 8, Issue: 4 (2023): 929–942
